Blog: Facebook Post Results in Loss of $80k Settlement

by Fiona Clancy, Associate Notes and Comments Editor

A Florida dad learned a costly lesson about sharing confidential information with his daughter and the ramifications of a subsequent social media post in a case that has gotten a lot of media attention lately. 

Patrick Snay sued his employer, Gulliver Prep School, when his 2010-2011 contract as the school’s headmaster was not renewed.[1]  Mr. Snay filed a two count complaint under the Florida Civil Rights Act alleging age discrimination and retaliation.[2]  On November 3, 2011, the parties executed a settlement agreement with various payments to be made by Gulliver Prep including $10,000 in back pay to Mr. Snay, (known as “Check #1), $80,000 to Mr. Snay as a “1099” (known as “Check #2), and $60,000 to Mr. Snay’s attorneys (known as “Check #3).[3]  Central to the agreement was a confidentiality clause that read in part:

 “13. Confidentiality…The plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement…A breach…will result in disgorgement of the Plaintiffs portion of the settlement payments.”[4] 

On November 7, 2011, only four days after the agreement was signed, Gulliver Prep notified Mr. Snay that he had breached the Agreement based on his daughter Dana Snay’s Facebook post which stated[5]:

 “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.”[6]

The Facebook post went out to approximately 1,200 of Dana Snay’s Facebook friends, which included many current or past Gulliver Prep students.[7]

Gulliver Prep also informed Mr. Snay that it would not be tendering Check #2, the $80,000 payment.[8]  Mr. Snay moved to enforce the settlement agreement and receive payment, and the trial court held that the Facebook posting did not constitute a breach of the agreement.[9]  However, Florida’s Third District Court of Appeals reversed the trial court’s ruling on February 26, 2014, stating that Mr. Snay’s $80,000 settlement with Gulliver Prep was null and void because his daughter breached the terms of the non-disclosure clause when she posted about it on Facebook.[10]  The Court of Appeals ruled in favor of Gulliver Prep in finding that Snay violated the agreement when he told his daughter about the settlement and acknowledged that Dana Snay did precisely what the confidentiality agreement was designed to prevent– advertising to the Gulliver Prep community that Snay had been successful in his age discrimination and retaliation case against the school.[11] 

The internet has been buzzing with legal commentary regarding this case with many lawyers weighing in and discussing the lessons learned.

A Chicago based, self-described “social media” attorney feels “this case illustrates why (1) it is important for parties to abide by the confidentiality provisions of settlement agreements and (2) people who learn confidential information should keep their social media mouths shut.”[12] 

One employment attorney commented that in most cases, the discussion revolves around the liability that social media can cause employers, while this case represents a turn of events with Facebook working in the employer’s favor.[13]  That attorney believes this case serves as a reminder that social media can open “Pandora’s box” with respect to liability for employers, but it can also provide a wealth of information during litigation for both sides.[14] 

Another employment attorney believes this case illustrates the need for well drafted confidentiality clauses.[15]  After all, employers include confidentiality clauses in their agreements precisely because they do not want a former employee openly disclosing the amount or existence of a settlement payment as that can encourage additional legal challenges and/or cause discord among current employees.[16]  While Gulliver did not end up paying Mr. Snay the $80,000, the information it wanted to protect is nevertheless now public.  The valuable lesson for employers, the attorney opines, is that a well written confidentiality clause is essential if an employer wants to prevent disclosure of the existence or amount of a settlement payment.[17]  The attorney suggests drafting the clauses to permit disclosure to immediate family members (which the agreement in the Snay case did not) because it is unlikely that families will not share the information with people who have been aware of and involved in the litigation process.  The key is to permit disclosure to those immediate family members but subject those family members to the same confidentiality requirements as the employee, preventing disclosure outside the immediate family.[18]  During the appeals process, Mr. Snay testified that he “knew the litigation was important to his daughter and that he and his wife would have to tell her something.”[19]  The appellate judge stated in her opinion that “[t]he fact that Snay testified that he knew he needed to tell his daughter something did not excuse this breach” and that there was “no evidence that [Snay] made this need known to the school or to his or its attorneys so that the parties might hammer out a mutually acceptable course of action in the agreement.”[20]  The court was not swayed by Mr. Snay’s testimony that he had not told his daughter he had “won” the case, and that she did not go to Europe, nor had she planned such a trip.[21]

A Michigan based employment attorney summed it up by stating “Facebook and confidentiality agreements do not mix.”[22]  The attorney also posits that it is “unrealistic to think that a family cannot be told since the fact of litigation is undoubtedly known” and suggests language in the agreement that allows for the disclosure of the settlement to immediate family members which specifically defines what family members may be told, while also specifically prohibiting any disclosures.[23]  Such a provision would not have authorized Dana Snay’s Facebook post, and would have better protected Gulliver Prep’s interests.[24]

While acknowledging that people may feel sympathy for the Snay family, the Michigan employment attorney feels this case provides important comfort to employers who settle cases with the express intention that the settlement remains confidential, and properly emphasizes to plaintiffs that nondisclosure means nondisclosure—even when third parties or family members are involved.[25]  Furthermore, this case serves as an important reminder that social media is now an established part of everyday life, that prohibitions against disclosure should specifically mention social media, and that our lawyering and agreements should adapt to the ever present technologies and platforms that permeate our lives.[26]  Appropriately planning for these situations is something both clients and attorneys can “Like.”